Madhya Pradesh High Court
Moiz Hussain vs The Principal Director Defene Estates on 5 May, 2015
1 W.P. Nos.11909/2013, 3975/2014, 3976/2014, 3977/2014, 3978/2014, 7207/2014, 7208/2014, 7209/2014, 7213/2014, 7216/2014, 7644/2014, 7652/2014, 8514/2014, 8536/2014, 2155/2015, 3782/2015, 3790/2015, 3805/2015 5.5.2015
Parties through their respective counsel.
I.A. No.2491/2015 :
Heard counsel for the parties.
By this application, the applicant prays for modification of order dated 16.4.2014 and order dated 13.7.2004 passed in W.P. No.5937/2002 so far as it relates to the present applicant and permit the applicant to reconstruct the existing old structure situated at Nazul Plot No.13 Nazul Sheet No.17 of Civil Lines, Pachmarhi, vide permission order sanction map dated 13.1.2015 granted by the Special Area Development Authority (SADA), Pachmarhi. The application is founded on the assertion that the Authorities have granted permission after having examined the factum of permissibility of the construction of structure on the land in question and not prohibited by the orders of the Supreme Court.
2. Notably, in paragraph No.2 of the application, the applicant has averred that he is owner/lessee of the Nazul Plot No.13, Nazul Sheet No.17 situated at Civil Lines within the limits of Municipal Pachmarhi, District Hoshangabad admeasuring about 27225 sq.ft. It is further stated that the said plot was purchased from Princess Prabhadevi Raje Pawar @ Preeti Devi by registered sale-deed dated 24.6.1952 by the grandmother of the applicant.
3. Even on close reading of the application, we are of the 2 opinion that no clear assertion has been made that the stated land is situated in excepted area of Nazul area under the administrative control of SADA. The total Nazul area under the administrative control of SADA is 395.939 ha. In the recommendation made by the CEC,however, 135 ha. of Nazul Area was noticed to be falling under the category of deemed forest, which was crucial for the Wild Life Management point of view and, therefore, to continue within the sanctuary area. The application does not state that the land owned and possessed by the applicant is outside this 135 ha of Nazul area covered as deemed forest. For the better understanding of the applicant's claim we may usefully refer to the recommendation made by the CEC in para 29, which reads thus :
"RECOMMENDATIONS
29. In the above background the following recommendations are made :
i) 395.939 ha of the Nazul area (area under administrative control of SADA) and 6.6.582 ha of the Army Cantonment area falling in the Pachmarhi Plateau may be permitted to be excluded from the Pachmarhi Sanctuary, 395 ha of the Cantonment area and 135 ha of the Nazul area which falls in the category of deemed forest and is important from the wildlife management point of view,may continue to remain within the Sanctuary. This may be permitted subject to the following conditions :
a) no new area will be transferred/leased or sold to any private party by the Army. The Army will be entitled to use cantonment area, excluded from the Sanctuary, only for its 3 own use;
b) construction of new buildings, renovation of existing buildings and other constructions by the private parties in the already leased out area, and also by the Army for its own use, will be permissible subject to the strict compliance of the SADA bylaws or Cantonment building bylaws whichever are more conservative/restrictive;
c) in the leased out Nazul area, no new construction either horizontal or vertical will be permissible. Only renovation / reconstruction on the existing plinth area subject to floor area and height restrictions as per the applicable bylaws will be permissible;
d) the excluded area of Pachmarhi will be declared an Eco Sensitive Zone with appropriate regulations/ safeguards. Till the Eco Sensitive Zone notification under the Environment (Protection) Act is issued, no new construction will be permissible except in exceptional circumstances for use by the Government and with the permission of the State Government; and
e) the Army will consider the transfer of 395 ha of deemed forest to the Madhya Pradesh Forest Department to enable it to take the appropriate conservation and protection measures;
ii) the 11 villages falling on the outer boundary of the Pachmarhi Wildlife Santuary (refer Annexure R-VIII) may be permitted to be excluded from the outer boundary of the Sanctuary. In addition, 28 villages falling within the sanctuary may be permitted to be treated as enclosures within the Sanctuary wherein the 4 provision of the Wildlife (Protection) Act, related to wildlife sanctuaries, are not applicable. The above may be permitted subject to;
(a) no mining or other industrial/ commercial activity except ecotourism will be permissible in such excluded areas;
(b) in Bariam village, only the privately owned area under habitation/ agriculture will be excluded; and
(c) appropriate regulations for these excluded villages will be prescribed by the State Government; and
iii) the sale/purchase of land effected in the past in the area of Pachmarhi Township, villages excluded from the Sanctuary and treated as enclosures within the Sanctuary will be treated as valid provided they are otherwise not repugnant to any law, Rules or Regulations prescribed by the competent Authority."
4. The Supreme Court in its order dt.12.8.2013 dealt with these recommendations while considering I.A. No.2402-2203 and finally concluded as follows:
"In the circumstances, therefore, we accept the recommendations made by C.E.C. Insofar as the Nazul area and the exclusion of 11 villages permitted to be excluded from the outer boundary of the Sanctuary and 28 villages falling within the Sanctuary being treated as enclosures subject to the conditions stipulated by the C.E.C."5
5. Distinction has been made in the recommendations of CEC regarding leased out Nazul area and excluded area of Pachmarhi, as can be discerned from Clause 1(c) and 1(d) of Recommendations in paragraph 29 of the report. In clause 29(1)
(e) in particular sub-clause (ii) thereof, the CEC has made recommendation with regard to 11 villages falling on the outer boundary of the Pachmarhi Wildlife Sanctuary. A priori, unless the applicant specifically states about the location of the land and that it is not falling under the Nazul area which is deemed forest and is recommended to be continued within the Sanctuary area or otherwise, no relief can be granted to the applicant. The fact that the permission has been granted by the Authority cannot be the sole basis to permit the applicant dehors the direction of the Supreme Court reproduced above.
6. The Supreme Court having upheld the recommendations of the CEC, the appropriate Authority is obliged to record a clear finding that the land is situated in the permissible area (excepted area), before permitting any person to renovate /reconstruct on the land situated in Nazul area. The permission also does not specifically mention about the exact location of the land in respect of which permission has been granted. The condition for construction in the Nazul area varies than the condition in respect of land falling in 135 ha. of Nazul area, which is deemed to be forest area or continued within the Sanctuary area.
7. As a result, we dispose of this application with direction to the appropriate Authority to record clear finding about the 6 type or class of land and why permission has been granted and as to how the permission granted is in conformity and with which clause of the recommendations of CEC. Further, the permission order must record the applicants eligibility for grant of such permission and more particularly whether the clause in the CEC recommendations is specifically approved by the Supreme Court and the date of such order. Only then, it would be possible for this Court to reassure itself that the structure to be put up on the subject land is permitted and allowed in terms of the directions of the Supreme Court. The appropriate Authority, must, in all future permissions, clearly record this position so as to obviate any confusion and prolixity of arguments on that count resulting in loss of valuable Court's time in ascertaining the correct facts.
8. Accordingly, this application is disposed of.
9. If the decision of the Authority is adverse to the applicant, the applicant will be free to challenge the same by way of appropriate proceedings, which will have to be decided on its own merits in accordance with law.
10. The compliance report filed by the Cantonment Board is taken on record. Copy of the said compliance report be made available to the counsel for the Amicus Curiae.
11. List main writ petitions on 8.5.2015.
(A. M. Khanwilkar) (K.K. Trivedi)
Chief Justice Judge
Khan*